Exhibit 1.1
EXECUTION COPY
$95,000,000
6.55% Home Loan Asset-Backed Certificates, Series 1997-1
Chevy Chase Home Loan Trust, Series 1997-1
CHEVY CHASE BANK, F.S.B.
as Seller and Servicer
UNDERWRITING AGREEMENT
----------------------
September 22, 1997
XXXXX XXXXXX INC., as
Representative of the several
underwriters listed on Schedule I
hereto (the "Representative")
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introduction. Chevy Chase Bank, F.S.B., a federally chartered
------------
stock savings bank ("Chevy Chase"), has authorized the issuance and sale of
-----------
$95,000,000 aggregate principal amount of 6.55% Home Loan Asset-Backed
Certificates, Series 1997-1 (the "Certificates"), evidencing undivided ownership
------------
interests in Chevy Chase Home Loan Trust, Series 1997-1 (the "Trust"). The
-----
Trust consists of a pool of closed-end home equity loans (the "Closed-End
----------
Loans"), closed-end debt consolidation loans (the "Debt Consolidation Loans")
------------------------
and conventional home improvement installment sales contracts and installment
loan agreements (the "Home Improvement Contracts" and, collectively with the
--------------------------
Closed-End Loans and the Debt Consolidation Loans, the "Loans"), most of which
-----
are secured by second or third deeds of trust or mortgages on primarily one- to
four-family residential properties, certain monies received thereunder on or
after September 1, 1997 (the "Cut-off Date") and the other property and proceeds
------------
thereof, as more fully described in the Pooling and Servicing Agreement (as
defined below) (collectively, the "Trust Property"). The Trust Property will be
--------------
conveyed to U.S. Bank National Association, a national banking association,
doing business as First Bank National Association, as trustee (the "Trustee"),
-------
on behalf of the certificateholders pursuant to the Pooling and Servicing
Agreement to be dated as of September 1, 1997 (the "Pooling and Servicing
---------------------
Agreement") between
---------
Chevy Chase, as seller (the "Seller") and as servicer (the "Servicer"), and the
------ --------
Trustee. The Trustee, on behalf of the holders of the Certificates, will have
the benefit of an irrevocable financial guaranty insurance policy (the "Policy")
------
to be issued by Capital Markets Assurance Corporation, a New York domiciled
monoline insurance company (the "Certificate Insurer") pursuant to an insurance
-------------------
and indemnity agreement dated as of September 29, 1997 (the "Insurance
---------
Agreement") among the Certificates Insurer, Chevy Chase, in its individual
---------
capacity and as Seller and Servicer, and the Trustee. In connection with the
transactions contemplated hereby, Xxxxx Xxxxxx Inc., Chevy Chase and the
Certificate Insurer will enter into an Indemnification Agreement dated as of
September 22, 1997 (the "Indemnification Agreement").
--------------- ---------
The Certificates are more fully described in a Registration Statement
which Chevy Chase has furnished to each of you (together, the "Underwriters" and
------------
each of you, an "Underwriter"). Capitalized terms used but not defined herein
-----------
shall have the meanings given to them in the Pooling and Servicing Agreement.
2. Representations and Warranties of Chevy Chase. Chevy Chase
---------------------------------------------
represents and warrants to, and agrees with, the Underwriters that:
(a) Chevy Chase has filed with the Securities and Exchange Commission
(the "Commission") on February 27, 1996, a registration statement (No. 333-1682)
----------
on Form S-3, and on March 19, 1996, Amendment No. 1 thereto, including a
prospectus, relating to the Certificates, which has become effective. Such
registration statement, as amended as of the date of this Agreement, is
hereinafter referred to as the "Registration Statement," and the prospectus
----------------------
included in such Registration Statement, as supplemented by a prospectus
supplement (the "Prospectus Supplement") to reflect the terms of the
---------------------
Certificates as first filed with the Commission after the date of this Agreement
pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the
-----------
Securities Act of 1933, as amended (the "Act"), including all material
---
incorporated by reference therein, is hereinafter referred to as the
"Prospectus". A "preliminary prospectus" means any form of prospectus,
---------- ----------------------
including any prospectus supplement, relating to the Certificates used prior to
the date of this Agreement that is subject to completion.
(b) On the effective date of the Registration Statement such
Registration Statement conformed in all respects to the requirements of the act
and the rules and regulations of the Commission thereunder (the "Rules and
---------
Regulations") and did not include any untrue statement of a material fact or
-----------
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and on the date of this Agreement
the Registration Statement and the
2
preliminary prospectus conform, and at the time of the filing of the Prospectus
in accordance with Rule 424(b), the Registration Statement and the Prospectus
will conform in all respects to the requirements of the act and the Rules and
Regulations, and neither of such documents will include any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein (and with respect to the Prospectus,
in the light of the circumstances under which they were made) not misleading,
except that the foregoing does not apply to statements in or omissions from any
of such documents based upon written information furnished to Chevy Chase by any
Underwriter through the Representative specifically for use therein (it being
understood that the only such information is the Underwriter Information, as
defined in Section 8(a)(i)).
----------------
(c) Chevy Chase meets the requirements for use of Form S-3 under the
Act.
(d) The documents incorporated by reference in the Registration
Statement and Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
--------
Act"), and the rules and regulations of the Commission thereunder.
---
(e) Since the respective dates as of which information is given in the
Prospectus, or the Prospectus as amended and supplemented, there has not been
any material adverse change in the general affairs, management or results of
operations of Chevy Chase or of its subsidiaries otherwise than as set forth or
contemplated in the Prospectus or the Prospectus as amended and supplemented,
nor has there been any adverse change in the general affairs, management, or
results of operations of any other affiliate of Chevy Chase which could have a
material adverse effect on the general affairs, management or results of
operations of Chevy Chase or its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus or the Prospectus as amended and supplemented.
(f) Chevy Chase is a federally chartered stock savings bank duly
organized and validly existing under the laws of the United States of America,
and has full corporate power, authority and legal right to own its properties
and conduct its business as such properties are presently owned and such
business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement, the Pooling and Servicing Agreement, the
Insurance Agreement and the Indemnification Agreement, and to cause the
Certificates to be issued. Chevy Chase has conducted and is conducting its
business so as to comply in all material respects with all applicable statutes
and all regulations including, without limitation, all regulations,
3
decisions, directives and orders of, as applicable, the Office of Thrift
Supervision and the Federal Home Loan Bank of Atlanta.
(g) Except as set forth in the Prospectus, or the Prospectus as
amended and supplemented, (i) there are no legal, governmental or regulatory
proceedings pending to which Chevy Chase is a party or of which any of its
property is the subject, which, if determined adversely to Chevy Chase, would
individually or in the aggregate have a material adverse effect on the
performance by Chevy Chase of this Agreement, the Pooling and Servicing
Agreement, the Insurance Agreement or the Indemnification Agreement or the
consummation of the transactions contemplated hereunder or thereunder and (ii)
to the best of its knowledge, no such proceedings are threatened or contemplated
by governmental or regulatory authorities or threatened by others.
(h) This Agreement has been duly authorized and validly executed and
delivered by Chevy Chase and constitutes a valid and binding agreement of Chevy
Chase, enforceable against Chevy Chase in accordance with its terms, except to
the extent that (i) the enforceability hereof may be subject to insolvency,
reorganization, moratorium, receivership, conservatorship or other similar laws,
regulations or procedures of general applicability now or hereafter in effect
relating to or affecting creditors' or other obligees' rights generally or the
rights of creditors or obligees of federally chartered stock savings banks, the
deposits of which are insured by the Federal Deposit Insurance Corporation (the
"FDIC"), (ii) the remedy of specific performance and injunctive and other forms
----
of equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefore may be brought and (iii)
rights to indemnification and contribution under this Agreement may be limited
by state or federal securities laws or the policies underlying such laws.
(i) The Pooling and Servicing Agreement, the Insurance Agreement and
the Indemnification Agreement have been duly authorized and, when executed and
delivered by Chevy Chase and assuming the due authorization, execution and
delivery of the Pooling and Servicing Agreement, the Insurance Agreement and the
Indemnification Agreement by the other parties thereto, will constitute valid
and binding obligations of Chevy Chase enforceable against Chevy Chase in
accordance with their respective terms, except to the extent that (i) the
enforceability thereof may be subject to insolvency, reorganization, moratorium,
receivership, conservatorship or other similar laws, regulations or procedures
of general applicability now or hereafter in effect relating to or affecting
creditors' or obligees' rights generally or the rights of creditors or obligees
of federally chartered stock savings banks, the deposits of which are insured by
the FDIC, (ii) the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the discretion
4
of the court before which any proceeding therefore may be brought and (iii)
rights to indemnification and contribution under the Indemnification Agreement
may be limited by state or federal securities laws or the policies underlying
such laws.
(j) The issuance and delivery of the Certificates, the consummation of
any other of the transactions contemplated herein, in the Pooling and Servicing
Agreement, in the Insurance Agreement or in the Indemnification Agreement, or
the fulfillment of the terms of this Agreement, the Pooling and Servicing
Agreement, the Insurance Agreement or the Indemnification Agreement, do not and
will not conflict with or violate any term or provision of the charter or bylaws
of Chevy Chase, any statute, order or regulation applicable to Chevy Chase of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over Chevy Chase and do not and will not conflict with, result in a
breach or violation or the acceleration of or constitute a default under or
result in the creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of Chevy Chase pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which Chevy Chase is a party or by which Chevy Chase may be bound
or to which any of the property or assets of Chevy Chase may be subject except
for conflicts, violations, breaches, accelerations and defaults which would not,
individually or in the aggregate, be materially adverse to Chevy Chase or
materially adverse to the transactions contemplated by this Agreement.
(k) Xxxxxx Xxxxxxxx & Co. is an independent public accountant with
respect to Chevy Chase as required by the Act and the Rules and Regulations.
(l) The direction by Chevy Chase to the Trustee to actually
authenticate, issue and deliver the Certificates has been duly authorized by
Chevy Chase and, assuming the Trustee has been duly authorized to do so, when
executed, authenticated, issued and delivered by the Trustee in accordance with
the Pooling and Servicing Agreement, the Certificates will be validly issued and
outstanding and will be entitled to the benefits of the Pooling and Servicing
Agreement.
(m) No consent, approval, authorization, order, administration or
qualification of or with any court or governmental agency or body of the United
States is required for the issuance or sale of the Certificates, or the
consummation by Chevy Chase of the other transactions contemplated by this
Agreement, the Pooling and Servicing Agreement, the Insurance Agreement or the
Indemnification Agreement, except the registration under the Act of the
Certificates and such consents, approvals, authorizations, registrations or
qualifications as may have been obtained or effected or as may be required under
state
5
securities or Blue Sky laws in connections with the purchase and distribution of
the Certificates by you.
(n) Chevy Chase possesses all material licenses, certificates,
authorities and permits issued by the appropriate State, Federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Prospectus and Chevy Chase has not received notice of
proceedings relating to the revocation or modification of any such license,
certificate, authority or permit which, singly or in the aggregate, if the
subject of any unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of its business, operations, financial condition or
income.
(o) At the time of execution and delivery of the Pooling and Servicing
Agreement, Chevy Chase (i) will have good title to the Loans being transferred
by it to the Trustee pursuant thereto, free and clear of any lien, mortgage,
pledge, charge, encumbrance, adverse claim or other security interest
(collectively, "Liens"), (ii) will not have assigned to any person any of its
-----
right, title or interest in such Loans or in the Pooling and Servicing Agreement
or the Certificates and (iii) will have the power and authority to sell the
Loans to the Trustee and to sell the Certificates to you and upon execution and
delivery of the Pooling and Servicing Agreement by the Trustee, the Trustee will
have acquired legal title and beneficial ownership of all of Xxxxx Xxxxx'x
right, title and interest in and to the Loans and upon delivery to you of the
Certificates you will have good title to the Certificates, in each case free of
liens.
(p) As of the Closing Date, each of the Loans meets the eligibility
criteria described in the Prospectus and each Eligible Substitute Loan
transferred to the Trust will meet the eligibility criteria described in the
Prospectus.
(q) The Trust is not, and immediately following the issuance and sale
of the Certificates will not be, required to be registered as an "investment
company" under the Investment Company Act of 1940, as amended (the "1940 Act"),
--------
as in effect on the date thereof.
(r) Each of the Certificates, the Pooling and Servicing Agreement, the
Insurance Agreement and the Policy conforms in all material respects to the
descriptions thereof contained in the Prospectus.
(s) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement, the Insurance Agreement, the Indemnification Agreement and
the Certificates that are required to be paid by Chevy Chase at or prior to the
6
Closing Date have been paid or will be paid at or prior to the Closing Date.
(t) As of the Closing Date, the representations and warranties of
Chevy Chase in the Pooling and Servicing Agreement and the Indemnification
Agreement will be true and correct.
Any certificate signed by an officer of Chevy Chase and delivered to
you in connection with an offering of the Certificates shall be deemed, and
shall state that it is, a representation and warranty as to the matters covered
thereby to the person to whom the representations and warranties in this Section
2 are made.
3. Purchase, Sale and Delivery of the Certificates. The Underwriters'
-----------------------------------------------
commitment to purchase the Certificates pursuant to this Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth. Chevy Chase agrees to instruct the Trustee to issue and agrees to sell
to the Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from Chevy Chase at the purchase price set forth on Schedule 1 hereto
the principal amount of Certificates set forth opposite their respective names
on Schedule 1 hereto.
Payment of the purchase price for, and delivery of, any Certificates
to be purchased by you shall be made at the office of Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP, or at such other place as shall be agreed upon by you and Chevy
Chase, at 10:00 a.m. New York City time on September 29, 1997 (the "Closing
-------
Date"), or at such other time or date as shall be agreed upon in writing by you
----
and Chevy Chase. Payment shall be made to Chevy Chase by wire transfer of same
day funds payable to the account of Chevy Chase. Delivery of the Certificates
shall be made to you for your account against payment of the purchase price
therefor. Such Certificates shall be in such denominations and registered in
such names as you may request in writing at least one Business Day prior to the
Closing Date. For purposes of Rule 15c6-1 under the Securities Exchange Act of
1934, the Closing Date (if later than the otherwise applicable settlement date)
shall be the settlement date for payment of funds and delivery of the
Certificates. Such Certificates, which may be in temporary form, will be made
available for examination and packaging by you no later than 3:00 p.m. on the
Business Day prior to the Closing Date.
4. Offering. It is understood that the Underwriters severally and
--------
not jointly propose to offer the Certificates for sale to the public (which may
include selected dealers) on the terms set forth in the Prospectus.
7
5. Covenants of Chevy Chase. Chevy Chase covenants with each of the
------------------------
Underwriters as follows:
(a) Chevy Chase shall file the Prospectus with the Commission pursuant
to and in accordance with subparagraph (2) (or, if applicable and if
consented to by the Underwriters, subparagraph (5)) of Rule 424(b) not
later than the second Business Day following the execution and delivery of
this Agreement. Chevy Chase will advise the Underwriters promptly of any
such filing pursuant to Rule 424(b).
(b) Chevy Chase shall advise the Underwriters promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus, and
will not effect such amendment or supplementation without the Underwriters'
consent; and Chevy Chase will also advise the Underwriters promptly of the
effectiveness of such amendment or supplementation (if its effective time
is subsequent to the execution and delivery of this Agreement) and of any
amendment or supplementation of the Registration Statement or the
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement and Chevy Chase will
make every reasonable effort to prevent the issuance of any such stop order
and to obtain as soon as possible its lifting, if issued.
(c) If at any time when the Prospectus as amended or supplemented is
required by the Act to be delivered in connection with sales of the
Certificates by you, any event shall occur or condition exist as a result
of which it is necessary, in the opinion of counsel for Chevy Chase, to
further amend or supplement the Prospectus as then amended or supplemented
in order that the Prospectus as amended or supplemented will not include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of any such counsel,
at any such time to amend or supplement the Registration Statement or the
Prospectus as then amended or supplemented in order to comply with the
requirements of the Act or the Rules and Regulations, Chevy Chase will
promptly prepare and, subject to the other provisions of this Section 5,
file with the Commission such amendment or supplement as may be necessary
to correct such untrue statement or omission or to make the
Registration Statement comply with such requirements, and within two
Business Days shall furnish to you as many copies of the Prospectus, as
amended or supplemented, as you shall reasonably request.
8
(d) Chevy Chase shall give you reasonable notice of its intention to
file any amendment to the Registration Statement, the Prospectus or the
Prospectus as amended or supplemented, pursuant to the Act, will furnish
you with copies of any such amendment or supplement proposed to be filed a
reasonable time in advance of filing, and will not file any such amendment
or supplement to which you shall object. Neither the consent of the
Representative to, nor the delivery by the Representative of, any such
amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 6.
---------
(e) Chevy Chase shall notify you immediately, and confirm the notice
in writing, (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the mailing or the delivery to the Commission for filing
of any supplement to the Prospectus or the Prospectus as amended or
supplemented, (iii) of the receipt and contents of any comments from the
Commission with respect to the Registration Statement or the Prospectus or
the Prospectus as amended or supplemented, (iv) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information and (v) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose. Chevy Chase will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(f) Chevy Chase shall deliver to you as many signed and as many
conformed copies of each Registration Statement (as originally filed) and
each amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated by reference in the
Prospectus) as you may reasonably request.
(g) Chevy Chase shall cause the Trust to make generally available to
holders of the Certificates, as soon as practicable, but no later than
sixteen months after the date hereof, an earnings statement of the Trust
covering a period of at least twelve consecutive months beginning after the
later of (i) the effective date of the registration statement relating to
the Certificates and (ii) the effective date of the most recent post-
effective amendment to the Registration Statement to become effective prior
to the date of this Agreement and, in each case, satisfying the provisions
of Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(h) Chevy Chase shall endeavor, in cooperation with you, to qualify
the Certificates for offering and sale under
9
the applicable securities laws of such states and other jurisdictions of
the United States as you may designate, and shall maintain or cause to be
maintained such qualifications in effect for as long as may be required for
the distribution of the Certificates. Chevy Chase shall file or cause the
filing of such statements and reports as may be required by the laws of
each jurisdiction in which the Certificates have been qualified as above
provided.
(i) Chevy Chase shall not, without your prior consent, publicly offer
or sell or contract to sell any securities of which Chevy Chase is the
issuer, representing interests in or secured by Closed-End Loans, Debt
Consolidation Loans, Home Improvement Contracts or similar assets secured
by interests in real property or improvements thereon for a period of 30
days following the commencement of the offering of the Certificates to the
public; provided, however, that notwithstanding the foregoing, the
-------- -------
Underwriters hereby consent to an offering by Chevy Chase of certificates
in a public transaction to be designated "Capitol Revolving Home Equity
Loan Trust 1997-1."
(j) So long as the Certificates are outstanding, Chevy Chase shall
deliver to you the annual statement as to compliance delivered to the
Trustee pursuant to Section 5.14 of the Pooling and Servicing Agreement and
the annual statement of a firm of independent public accountants furnished
to the Trustee pursuant to Section 5.08 of the Pooling and Servicing
Agreement as soon as such statements are furnished to the Trustee.
(k) Chevy Chase shall apply the net proceeds from the sale of the
Certificates in the manner set forth in the Prospectus.
(l) If, between the date hereof or, if earlier, the dates as of which
information is given in the Prospectus and the Closing Date, to the
knowledge of Chevy Chase there is any material change, or any development
involving a prospective material change in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of Chevy Xxxxx, Xxxxx Xxxxx shall give you prompt written notice
thereof.
(m) Chevy Chase, during the period when the Prospectus is required to
be delivered under the Act, shall file promptly all documents required to
be filed with the Commission pursuant to Section 13 or 14 of the Exchange
Act, including, without limitation, a Form 8-K containing this Agreement,
the Pooling and Servicing Agreement and the Policy.
10
6. Conditions of the Obligations of the Underwriters. The
-------------------------------------------------
obligations of the several Underwriters to purchase the Certificates pursuant to
this Agreement are subject to the accuracy on and as of the Closing Date of the
representations and warranties on the part of Chevy Chase herein contained, to
the accuracy of the statements of officers of Chevy Chase made pursuant hereto,
to the performance by Chevy Chase of all of its obligations hereunder and to the
following conditions at the Closing Date:
(a) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) hereof. No stop
------------
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or threatened by the Commission.
(b) You shall have received the favorable opinion, dated the
Closing Date, of Shaw, Pittman, Xxxxx & Xxxxxxxxxx, counsel to Chevy Chase
(with respect to items (i) through (vii) and (xii)), and Xxxxxx, Xxxxxxxxxx
& Sutcliffe LLP, special counsel to Chevy Chase reasonably satisfactory to
you (with respect to items (viii) through (xii)), addressed to you and in
form and scope satisfactory to you to the effect that:
(i) Chevy Chase has been duly chartered and is validly
existing as a federally chartered stock savings bank under the
laws of the United States of America, and has full corporate
power, authority and legal right to (a) own its properties and
conduct its business as described in the Prospectus, (b) execute,
deliver and perform its obligations under this Agreement, the
Pooling and Servicing Agreement, the Insurance Agreement and the
Indemnification Agreement, (c) cause the Certificates to be
issued and (d) consummate the other transactions contemplated
under this Agreement, the Pooling and Servicing Agreement, the
Insurance Agreement and the Indemnification Agreement.
(ii) Chevy Chase has duly authorized, executed and delivered
the written order to the Trustee to execute and deliver the
Certificates. When the Certificates have been duly executed,
delivered and authenticated in accordance with the Pooling and
Servicing Agreement and delivered and paid for pursuant to this
Agreement, the Certificates will be validly issued, outstanding
and entitled to the benefits of the Pooling and Servicing
Agreement, subject as to enforceability to the effects of
applicable bankruptcy,
11
insolvency, reorganization, fraudulent conveyance, moratorium and
similar laws now or hereafter in effect relating to creditors' or
other obligees' rights generally or the rights of creditors or
other obligees of institutions the deposits of which are insured
by the Federal Deposit Insurance Corporation ("FDIC") and subject
----
to general principles of equity (whether applied in a proceeding
at law or in equity).
(iii) Chevy Chase has duly authorized, executed and
delivered this Agreement, the Pooling and Servicing Agreement,
the Insurance Agreement and the Indemnification Agreement, and
each of this Agreement the Pooling and Servicing Agreement, the
Insurance Agreement and the Indemnification Agreement is the
legal, valid and binding obligation of Chevy Chase, enforceable
against Chevy Chase in accordance with its terms, subject as to
enforceability (a) to the effects of applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and
similar laws now or hereafter in effect relating to creditors' or
other obligees' rights generally or the rights of creditors or
other obligees of institutions the deposits of which are insured
by the FDIC and subject to general principles of equity (whether
applied in a proceeding at law or in equity) and (B) to
limitations on the rights to indemnification and contribution,
with respect to this Agreement and the Indemnification Agreement,
under state and federal securities laws and the policies
underlying such laws.
(iv) The execution and delivery by Chevy Chase of this
Agreement, the Pooling and Servicing Agreement, the Insurance
Agreement and the Indemnification Agreement, the transfer of the
Trust Property by Chevy Chase to the Trust, the issuance and sale
of the Certificates and the consummation by Chevy Chase of the
other transactions contemplated by this Agreement, the Pooling
and Servicing Agreement, the Insurance Agreement and the
Indemnification Agreement (A) do not and will not conflict with
or result in a violation of (1) any statute or regulation of the
United States of America or the State of Maryland, (2) the
charter or bylaws of Chevy Chase or (3) any order, writ, judgment
or decree known to us to which Chevy Chase is a party or is
subject, or (B) to our knowledge, except as contemplated in the
Agreements, do not and will not result in any lien, charge or
encumbrance upon any of the
12
properties or assets of Chevy Chase. Such counsel may state that
they render no opinion pursuant to clause (A) of this paragraph
(iv) with respect to any statute or regulation under which rights
to indemnity and contribution for violation of federal or state
securities laws may be limited or prohibited.
(v) To such counsel's knowledge, there are no actions,
proceedings or investigations pending against Chevy Chase or
threatened against Chevy Chase before any court, administrative
agency or other tribunal (A) asserting the invalidity of the
Certificates, the Trust, this Agreement, the Pooling and
Servicing Agreement, the Insurance Agreement or the
Indemnification Agreement, (B) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions
contemplated by this Agreement, the Pooling and Servicing
Agreement, the Insurance Agreement or the Indemnification
Agreement, (C) that could adversely affect the validity or
enforceability of this Agreement, the Pooling and Servicing
Agreement, the Insurance Agreement, the Indemnification Agreement
or the Certificates against Chevy Chase or the ability of Chevy
Chase to perform its obligations thereunder or (D) seeking to
affect adversely the federal income tax attributes of the
Certificates as described in the Prospectus and the Prospectus
Supplement under the heading "Federal Income Tax Considerations."
(vi) No consent, license, approval, authorization or order
of, or filing with, any court or governmental agency or body is
required of Chevy Chase for the consummation by Chevy Chase of
the transactions contemplated in this Agreement, the Pooling and
Servicing Agreement, the Insurance Agreement or the
Indemnification Agreement, except such consents, licenses,
approvals, authorizations or orders as have been obtained or such
filings as have been made or as may be required under state
securities or Blue Sky laws and except where the failure to
obtain the same would not have a material adverse effect upon the
rights of the Certificateholders.
(vii) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened against Chevy
Chase that are required to be disclosed in the Registration
Statement and the Prospectus, other than those disclosed therein.
13
(viii) The Pooling and Servicing Agreement need not be
qualified under the Trust Indenture Act and the Trust is not
required to register under the 1940 Act.
(ix) To such counsel's knowledge no stop order suspending
the effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose are
pending or threatened by the Commission.
(x) Such counsel shall state that they have participated in
the preparation of the Prospectus, the Preliminary Prospectus
Supplement and the Prospectus Supplement and no facts have come
to their attention that cause them to believe that the Prospectus
as supplemented by each of the Preliminary Prospectus Supplement
and the Prospectus Supplement as of its respective date or the
Closing Date, contains any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that such counsel need
--------
not express any view with respect to (A) the information under
the heading "The Certificate Insurer", (B) the information under
the heading "The Seller", and (C) the financial or statistical
material included in the Registration Statement or the
Prospectus.
(xi) If the FDIC is appointed as a conservator or receiver
of Chevy Chase pursuant to Section 11(c)(3)(A) of the Federal
Deposit Insurance Act, as amended (the "FDIA") or pursuant to
----
Section 11(c)(4) of the FDIA, the valid perfected security
interest of the Trustee in the Loans would be enforceable against
Chevy Chase. For purposes of this paragraph (xii), such counsel
may assume that from the time of its execution the Pooling and
Servicing Agreement has been and will be an official record (as
such term is used in Sections 11(n)(4)(I)(iv) and 13(e)(4) of the
FDIA) of Chevy Chase, and may make such other assumptions as are
customary in opinions of this type.
(xii) To such counsel's knowledge, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments to which Chevy Chase is a party that are required to
be filed as exhibits to the Registration Statement other than
those described or referred to therein
14
or filed or incorporated by reference as exhibits thereto.
(c) You shall have received the favorable opinion of Shaw,
Pittman, Xxxxx & Xxxxxxxxxx with respect to those state tax matters
relating to the State of Maryland if such an opinion is requested by the
Certificate Insurer.
(d) You shall have received the favorable opinion of counsel to
the Trustee, dated the Closing Date, addressed to you and in form and scope
satisfactory to you, to the effect that:
(i) The Trustee has duly authorized, executed and delivered
the Pooling and Servicing Agreement.
(ii) The Trustee has full power and authority to execute and
deliver the Pooling and Servicing Agreement and to perform its
obligations thereunder and such Agreement constitutes the valid,
legal and binding obligation of the Trustee, enforceable against
the Trustee in accordance with its terms.
(iii) The Certificates have been duly executed and
authenticated by the Trustee.
(iv) The execution and delivery by the Trustee of the
Pooling and Servicing Agreement and the performance by the
Trustee of its duties thereunder do not conflict with or result
in a violation of (A) any law or regulation of the United States
of America or the State of New York, (B) the charter or bylaws of
the Trustee or (C) any order, writ, judgment or decree.
(v) No consent, approval or authorization of, or
registration, declaration or filing with, any court or
governmental agency or body of the United States of America or
any state thereof is required for the execution, delivery or
performance by the Trustee of the Pooling and Servicing
Agreement.
(e) You shall have received the favorable opinion, dated the
Closing Date, of counsel for the Certificate Insurer, in form and scope
satisfactory to you, to the effect that:
(i) The Certificate Insurer is a corporation validly
existing, in good standing and licensed to
15
transact the business of surety and financial guaranty insurance
under the laws of the State of New York.
(ii) The Certificate Insurer has the corporate power to
execute and deliver, and to perform its obligations under, the
Policy, the Insurance Agreement and the Indemnification
Agreement.
(iii) Each of the Policy, the Insurance Agreement and the
Indemnification Agreement has been duly authorized, executed and
delivered on behalf of the Certificate Insurer.
(iv) Except as have already been obtained, no authorization,
consent, approval, license, formal exemption or declaration from,
nor any notice to or filing with, any court or governmental
agency or body of the United States of America or the State of
New York which if not obtained would affect or impair the
validity or enforceability of the Policy, the Insurance Agreement
or the Indemnification Agreement against the Certificate Insurer
is required in connection with the execution and delivery by the
Certificate Insurer of the Policy, the Insurance Agreement, the
Indemnification Agreement or in connection with the Certificate
Insurer's performance of its obligations thereunder; such counsel
may note that (S)6905 of Article 69 of the New York State
Insurance Law, as amended, requires that policy forms and any
amendments thereto shall be filed with the Superintendent of the
New York State Insurance Department within thirty days of their
use by the insurer if not previously so filed.
(v) Each of the Policy and, assuming due authorization,
execution and delivery of the Insurance Agreement and the
Indemnification Agreement by the parties thereto (other than the
Certificate Insurer), the Insurance Agreement and the
Indemnification Agreement is the legal, valid and binding
obligation of the Certificate Insurer, enforceable against the
Certificate Insurer in accordance with its terms subject, as to
enforcement, to (a) bankruptcy, reorganization, insolvency,
moratorium and other similar laws relating to or affecting the
enforcement of creditors' rights generally, including, without
limitation, laws relating to fraudulent transfers or conveyances,
preferential transfers and equitable subordination, presently or
from time to
16
time in effect and general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity
or at law), as such laws may be applied in any such proceeding
with respect to the Certificate Insurer, and (b) the
qualification that the remedy of specific performance may be
subject to equitable defenses and to the discretion of the court
before which any proceedings with respect thereto may be brought
and (c) the enforceability of rights to indemnification under the
Indemnification Agreement may be subject to limitations of public
policy under applicable securities laws.
(vi) The Policy is not required to be registered under the
Securities Act of 1933, as amended, in connection with the offer
and sale of the Certificates in the manner contemplated by the
Prospectus Supplement.
(f) You shall have received the favorable opinion, dated the
Closing Date, of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to Chevy
Chase, addressed to you and in form and scope satisfactory to you, relating
to the creation, attachment and perfection of a first priority security
interest in the Loans in favor of the Trustee on behalf of the
Certificateholders. Such opinion may contain assumptions, qualifications
and limitations as are customary in opinions of this type and are
reasonably acceptable to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than specified federal laws of the United States of
America, the laws of the State of New York (with respect to the creation
and attachment of a security interest in the Loans) and the laws of the
State of Minnesota (with respect to the perfection and priority of the
security interest in the Loans).
(g) You shall have received the favorable opinion, dated the
Closing Date, of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel to the
Underwriters, addressed to you and in form and scope satisfactory to you to
the effect that:
(i) The statements in the Prospectus and the Prospectus
Supplement under the headings "Summary of Terms -- Federal Income
Tax Considerations" and "Federal Income Tax Considerations," to
the extent that they constitute statements of matters of law or
legal conclusions with respect thereto, have been reviewed by
such counsel and accurately describe the material consequences to
holders of the Certificates under the Code.
17
(ii) The Trust should be treated as a grantor trust for
federal income tax purposes but, failing that, it will be
characterized as a partnership and not as an association taxable
as a corporation (or publicly traded partnership treated as an
association).
(iii) Such other matters as the Underwriters shall
reasonably require and the Seller shall have furnished to such
counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
(h) Chevy Chase shall have furnished to you a certificate signed
on behalf of Chevy Chase by the principal accounting or principal financial
officer thereof, dated the Closing Date, as to (i) the accuracy of the
representations and warranties of Chevy Chase herein at and as of the
Closing Date, (ii) the performance by Chevy Chase of all of its obligations
hereunder to be performed at or prior to the Closing Date and (iii) such
other matters as you may reasonably request.
(i) The Trustee shall have furnished to you a certificate of the
Trustee, signed by one or more duly authorized officers of the Trustee,
dated the Closing Date, as to the due acceptance of the Pooling and
Servicing Agreement by the Trustee and the due execution and delivery of
the Certificates by the Trustee thereunder and such other matters as you
shall reasonably request.
(j) The Certificate Insurer shall have furnished to you and
Chevy Chase a certificate of the Certificate Insurer, signed by one or more
duly authorized officers of the Certificate Insurer, dated the Closing
Date, to the effect that:
(i) Each such officer has reviewed the information with
respect to the Certificate Insurer in the section of the
Prospectus Supplement captioned "The Certificate Insurer" and
that although such information does not purport to provide the
scope of disclosure required to be included by the Act with
respect to a registrant in connection with the offer and sale of
securities of such registrant, such officer has no reason to
believe that such section of the Prospectus Supplement contains
any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they are made, not misleading; and
18
(ii) There has been no changes in the financial condition of
the Certificate Insurer since December 31, 1996 which would have
a material adverse effect on the Certificate Insurer's ability to
meet its obligations under the Policy.
(k) The Policy shall have been issued by the Certificate Insurer
pursuant to the Insurance Agreement.
(l) The Certificates shall have been rated "AAA" by Standard and
Poor's Ratings Group and "Aaa" by Xxxxx'x Investors Service, Inc., and such
ratings shall not have been rescinded.
(m) You shall have received from Xxxxxx Xxxxxxxx & Co., or other
independent certified public accountants acceptable to you, letters, on or
prior to the date of this Agreement delivered at such times in form
satisfactory to you, confirming that they are independent public
accountants within the meaning of the Act and the Rules and Regulations and
stating in effect that (i) they have performed certain specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the general
accounting records of Chevy Chase) set forth in the Registration Statement
and the Prospectus (and any supplements thereto), agrees with the
accounting records of Chevy Chase, excluding any questions of legal
interpretation, and (ii) they have performed certain specified procedures
with respect to the accounts.
(n) Prior to the Closing Date, you shall have been furnished
with such documents and opinions as you may reasonably require in order to
evidence the accuracy and completeness of any of the representations and
warranties or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by Chevy Chase in connection with the issuance
and sale of the Certificates as herein contemplated shall be satisfactory
in form and substance to you.
(o) Since the respective dates of which information is given in
the Prospectus, there shall not have been any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of Chevy Chase otherwise than as set forth in the Prospectus,
the effect of which is in your judgment so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or the
19
delivery of the Certificates on the terms and in the manner contemplated in
the Prospectus.
(p) The Representative shall have received copies of each opinion
of counsel and certificate delivered to either Rating Agency or the
Certificate Insurer, together with a letter addressed to the
Representative, dated the Closing Date, to the effect that each Underwriter
may rely on each such opinion and certificate to the same extent as though
such opinion was addressed to each as of its date.
(q) Prior to the Closing Date, Chevy Chase shall have furnished
to you such further information, certificates and documents as you may
reasonably request.
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by you by notice to Chevy Chase at any time at or prior to the Closing Date, and
such termination shall be without liability of any party to any other party
except as provided in Section 7.
---------
7. Payment of Expenses. Chevy Chase agrees to pay all expenses
-------------------
incident to the performance of its obligations under this Agreement, including
without limitation those related to (i) the filing of the Registration Statement
and all amendments thereto, (ii) the duplication and delivery to you, in such
quantities as you may reasonably request, of copies of this Agreement, (iii) the
preparation, issuance and delivery of the Certificates, (iv) 50% of the fees and
disbursements of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel to Chevy
Chase, the remaining 50% to be paid by the Underwriters, and the fees and
disbursements of Xxxxxx Xxxxxxxx & Co., accountants of Chevy Chase, and (v) 50%
of the fees relating to the qualification of the Certificates under securities
and Blue Sky laws and the determination of the eligibility of the Certificates
for investment in accordance with the provisions of Section 5(h), including
------------
filing fees and all fees and disbursements of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
in connection therewith and in connection with the preparation of any Blue Sky
Survey, (vi) the printing and delivery to you, in such quantities as you may
reasonably request, hereinabove stated, of copies of the Registration Statement
and Prospectus and all amendments and supplements thereto, and of any Blue Sky
Survey, (vii) the duplication and delivery to you, in such quantities as you may
reasonably request, of copies of the Pooling and Servicing Agreement, the
Insurance Agreement and the Indemnification Agreement, (viii) the fees charged
by nationally recognized statistical rating agencies for rating the
Certificates, (ix) the fees and expenses of the Trustee and its counsel and (x)
the fees and expenses of the Certificate Insurer and its counsel. The
Underwriters agree to pay (i) 50% of the fees and disbursements of Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP, including 50% of the fees
20
relating to the qualification of the Certificates under securities and Blue Sky
laws and the determination of the eligibility of the Certificates for investment
in accordance with the provisions of Section 5(h), including filing fees and all
------------
fees and disbursements of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP in connection
therewith and in connection with the preparation of any Blue Sky Survey and (ii)
other expenses of Chevy Chase relating to the transactions contemplated hereby
in an amount equal to $27,793.00
If this Agreement is terminated by you in accordance with the
provisions of Section 6 or Section 11(i), Chevy Chase shall reimburse you for
--------- -------------
all reasonable out-of-pocket expenses including without limitation all fees and
disbursements of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP.
8. Indemnification. (a) Chevy Chase agrees to indemnify and hold
---------------
harmless you and each person, if any, who controls you within the meaning of the
Act or the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus
or preliminary prospectus supplement, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading (in the case
of the Prospectus or any amendment or supplement thereto, in the light
of the circumstances under which they were made); provided, however,
-------- -------
that Chevy Chase will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance
upon and in conformity with written information furnished to Chevy
Chase by any Underwriter through the Representative specifically for
use therein, it being understood and agreed that the only such
information furnished by any Underwriters consists of the following
information (collectively, the "Underwriter Information"):
(w) the sixth paragraph on the cover of the Prospectus
(discussing the offering of the Certificates);
21
(x) the second paragraph on the cover of the Prospectus
(discussing the risk of a lack of secondary trading);
(y) the fourth paragraph on the inside cover of the
Prospectus (discussing over-allotments and stabilization);
and
(z) the information contained under the caption
"Underwriting" in the Prospectus;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever arising out of or based
upon any such untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is effected with
the written consent of Chevy Chase; and
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by you, subject to
Section 8(c)) as reasonably incurred in investigating, preparing
------------
or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever arising out of or based upon
any such untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided such indemnity with respect to the Prospectus or any preliminary
--------
prospectus shall not inure to the benefit of the Underwriter (or person
controlling such Underwriter) from whom the person suffering any such loss,
claim, damage or liability purchased the Certificates which are the subject
thereof if such person did not receive a copy of the Prospectus at or prior to
the confirmation of the sale of such Certificates to such person in any case
where such delivery is required by the Act and the untrue statement or omission
of a material fact contained in any preliminary prospectus was corrected in the
Prospectus and the Prospectus was delivered to such Underwriter in a timely
manner in accordance with Section 5(c). This indemnity agreement will be in
------------
addition to any liability which Chevy Chase may otherwise have.
(b) Each of you agrees, severally and jointly, to indemnify and hold
harmless Chevy Chase, each of its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls Chevy Chase within
the meaning
22
of the Act or the Exchange Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 8(a), but
------------
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement, the Prospectus, or
any amendment or supplement thereto or any related preliminary prospectus or
preliminary prospectus supplement in reliance upon and in conformity with
written information furnished to Chevy Chase by any Underwriter through the
Representative expressly for use therein it being understood and agreed that the
only such information furnished by any Underwriter consists of the Underwriter
Information. This indemnity agreement will be in addition to any liability which
you may otherwise have.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it with respect to which
indemnity may be sought hereunder but failure to so notify an indemnifying party
shall not relieve it from any liability which it may have on account of this
indemnity agreement other than to the extent that such indemnifying party is
materially prejudiced by the indemnified party's failure to provide such
notification. An indemnifying party may participate at its own expense in the
defense of such action. If it so elects within a reasonable time after receipt
of such notice, an indemnifying party, jointly with any other indemnifying
parties receiving such notice, may assume the defense of such action with
counsel chosen by it and approved by the indemnified parties defendant in such
action, unless such indemnified parties reasonably object to such assumption on
the ground that there may be legal defenses available to them which are
different from or in addition to those available to such indemnifying party. If
an indemnifying party assumes the defense of such action, the indemnifying
parties shall not be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such action other
than reasonable costs of investigation. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, unless (i) if the defendants in any such action
include one or more of the indemnified parties and the indemnifying party, one
or more of the indemnified parties shall have employed separate counsel after
having reasonably concluded that there may be legal defenses available to it or
them that are different from or additional to those available to the
indemnifying party or to one or more of the other indemnified parties or (ii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of the commencement of the action. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action
23
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability from any claims that are the subject matter of such action.
9. Contribution. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnity agreement provided for in
Section 8 is for any reason held to be unenforceable by the indemnified parties
---------
although applicable in accordance with its terms, Chevy Chase on the one hand,
and each of you, on the other, shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by Chevy Chase and you (i) in such proportion as is
appropriate to reflect the relative benefits received by Chevy Chase on the one
hand and each of you on the other from the offering of the Certificates or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of Chevy
Chase on the one hand and each of you on the other in connection with the
statements or omissions which resulted in the losses, liabilities, claims,
damages and expenses. The relative benefits received by Chevy Chase on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by Chevy Chase bear to the total underwriting discounts and
commissions received by the Underwriters; provided, however, that no person
-------- -------
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Relative fault shall be determined by
references to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by Chevy Chase or by you and the
relative intent of the parties, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required to contribute any
amount in excess of the amount of the underwriting discounts and commissions
received by such Underwriter. For purposes of this Section 9, each person, if
any, who controls you within the meaning of the Act or the Exchange Act shall
have the same rights to contribution as each of you and each director of Chevy
Chase, each officer of Chevy Chase who signed the Registration Statement, and
each person, if any, who controls Chevy Chase within the meaning of the Act or
the Exchange Act shall have the same rights to contribution as Chevy Chase.
24
10. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representatives, warranties and agreements contained in this Agreement or
contained in certificates of officers of Chevy Chase submitted pursuant hereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of you or any controlling person of you, or
by or on behalf of Chevy Chase and shall survive delivery of any Certificates to
you.
11. Termination of Agreement. You may terminate this Agreement,
------------------------
immediately upon notice to Chevy Chase, at any time at or prior to the Closing
Date (i) if there has occurred any outbreak or escalation of hostilities or
other calamity or crisis the effect of which on the financial market of the
United States of America is such as to make it, in your judgment, impracticable
to market the Certificates or enforce contracts for the sale of the Certificates
or (ii) if trading generally on either the New York Stock Exchange or the
American Stock Exchange has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by either of such exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by either
Federal or New York State authorities. In the event of any such termination,
the covenant set forth in Section 5(d), the provisions of Section 7, the
------------ ---------
indemnity agreement set forth in Section 8, the contribution provisions set
---------
forth in Section 9 and the provisions of Section 10 and Section 13 shall remain
--------- ---------- ----------
in effect.
12. Notices. All notices and other communications hereunder shall be
-------
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to Xxxxx Xxxxxx Inc. shall be
directed to the address set forth on the first page hereof, or sent by facsimile
machine which produces an electronic confirmation of receipt to (000) 000-0000,
Attention: Asset Finance Group. Notices to Credit Suisse First Boston
Corporation shall be directed to Credit Suisse First Boston Corporation, 00
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or sent by facsimile
machine which produces an electronic confirmation of receipt to (000) 000-0000
Attention: Xxxxxxx Xxxxx. Notices to Chevy Chase shall be directed to Chevy
Chase Bank, F.S.B., 0000 Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxx 00000, or
sent by facsimile machine which produces an electronic confirmation of receipt
to 301/986-7401, Attention: Xxxxxxx X. Xxxxxx, Xx.
13. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon you and Chevy Chase, and their respective successors. Nothing
expressed or mentioned in this Agreement is intended nor shall it be construed
to give any person, firm or corporation, other than the parties hereto or
thereto and their respective successors and the controlling persons and officers
and directors referred to in Section 8 and
---------
25
Section 9 and their heirs and legal representatives, any legal or equitable
---------
right, remedy or claim under or with respect to this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the parties and their
respective successors and said controlling persons and officers and directors
and their heirs and legal representatives (to the extent of their rights as
specified herein and therein) and except as provided above for the benefit of no
other person, firm or corporation. No purchaser of Certificates from you shall
be deemed to be a successor by reason merely of such purchase.
14. Representation of Underwriters. Xxxxx Xxxxxx Inc. will act for
------------------------------
the several Underwriters in connection with this Offering of Certificates, and
any action taken by the Underwriters under this Agreement will be binding upon
all the Underwriters.
15. Governing Law and Time. This Agreement shall be governed by the
----------------------
laws of the State of New York and shall be construed in accordance with such
laws without regard to principles of conflicts of laws. Specified times of day
refer to New York City time.
16. Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be deemed to be an original, but together they shall
constitute but one instrument.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and Chevy Chase in accordance with its terms.
Very truly yours,
CHEVY CHASE BANK, F.S.B.
By:
--------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of the
date first above written:
By: XXXXX XXXXXX INC.,
as Representative of the
several Underwriters listed
on Schedule I hereto
By:
-------------------------------
Name:
Title:
27
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and Chevy Chase in accordance with its terms.
Very truly yours,
CHEVY CHASE BANK, F.S.B.
By:
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
CONFIRMED AND ACCEPTED, as of the
date first above written:
By: XXXXX XXXXXX INC.,
as Representative of the
several Underwriters listed
on Schedule I hereto
By:
-----------------------------
Name:
Title:
28
Schedule 1
Underwriting
Principal Proceeds to
Underwriter Purchase Price Amount Chevy Chase*
----------- -------------- --------- ------------
Xxxxx Xxxxxx Inc. 99.618750% $47,500,000 $47,318,906.25
Credit Suisse 99.618750% 47,500,000 47,318,906.25
----------- --------------
First Boston
TOTAL $95,000,000 $94,637,812.50
=========== ==============
* Price excludes accrued interest.
29
